KILLER TRUCKS

Introduction

Truck accidents kill more than 5,000 people each year on America's highways. In fact, truck accident related deaths remain high even though other traffic accident deaths have decreased. This dangerous situation is expected to get worse. According to safety advocates, the annual death toll will reach 6,000 by next year. The sheer number of big-rigs on the highway is growing 50% faster than family-vehicle driving. Today, over 7 million trucks travel more than 190 trillion miles on America's highways -- a 135% increase from 1975. Furthermore, there are approximately 500,000 trucking companies operating big-rigs on our highways.^[1]

Although big-rig travel is up, federal oversight is down. In the random 2 million roadside inspections conducted each year by the Department of Transportation, an astonishing 20% of the trucks are ordered off the road for safety violations and 8% of the drivers are temporarily ordered off the road for falsifying log books or simply because they are considered unfit to drive. Furthermore, because the Department of Transportation conducts only 6,500 company safety reviews each year, it would take 55 years to rate the entire industry. Hence, 72% of the trucking companies in this country (approximately 300,000) have never had a safety review!^[2]

Wrecks caused by big trucks are not mere accidents, but rather the foreseeable, logical, and predictable result of the mass transportation system in this country. Companies routinely hire less than qualified drivers; compensate them based upon the number of miles traveled and the amount of cargo hauled; encourage speeding; and deduct pay whenever the truck is out of service.^[3] Hence, a sweat shop on wheels has been created on our highways where accidents are going to happen!

According to a recent study of the Alabama Department of Public Health, living in Alabama increases your chances of dying in a motor vehicle accident. Although there has been a decrease in the number of motor vehicle fatalities around the country over the past 20 years, the death rate in Alabama for motor vehicle collisions has continued to climb. In 1997 Alabama's Aresident motor vehicle death rate was over 30 per 100,000 population. The national rate is only 15.8.^[4]

Lawsuits against trucking companies are more complex than a simple automobile collision. The complexity is caused by state and federal rules which govern, or attempt to govern, the trucking industry. This paper is not intended to be an exhaustive review of litigation involving 18-wheel trucks, but rather is to simply introduce you to a brief overview of how one can approach death and serious injury cases involving killer trucks.

Theories of Recovery

There are several theories of recovery regarding cases against 18-wheelers. The main two (2) theories are negligence and wantonness coupled with agency. It is also advisable to add claims based upon negligent entrustment; both entrusting a vehicle to an incompetent driver as well as entrusting a defective vehicle to a competent driver. The Federal Motor Carrier Safety Regulations addressed below require things such as inspection reports and maintenance records which are particularly relevant to this type claim. Furthermore, in certain fact situations, you may have separate negligence claims based upon allegations of overloading a truck, improperly loading a truck and/or setting a time requirement for delivery that cannot be met without requiring the driver to speed.^[5]

Regulations

The trucking industry is regulated both on the national and local level. These regulations can be very important in establishing liability. The United States Department of Transportation, Federal Highway Administration, regulates interstate trucking. The Office of Motor Carriers has the responsibility of promulgating and enforcing rules and regulations known as the Federal Motor Carrier Safety Regulations. Motor carriers and their drivers are required to be familiar with and follow these regulations. The Alabama Supreme Court has ruled that the Federal Motor Carrier Safety Regulations are similar to OSHA standards and are admissible into evidence regarding the standard of care. Hence, the plaintiff's attorneys should introduce the regulations into evidence and be prepared to refer to them throughout the course of the trial. It is also imperative that the plaintiff's attorney be thoroughly familiar with these rules and regulations so that his or her investigation of a defendant motor carrier and/or driver will be sufficient.^[6]

The following is a list of significant sections with brief comments:

Section 383.21(a) NUMBER OF DRIVERS' LICENSES -- It is illegal for a person who operates a commercial motor vehicle to have more than one driver's license.

Sections 385.1 through 385.23 SAFETY FITNESS PROCEDURE -- The Federal Highway Administration conducts safety and compliance reviews of motor carriers and assigns safety ratings of satisfactory, conditional, unsatisfactory or unrated. This information can be obtained by the public through the Federal Highway Administration. Section 391.15 DISQUALIFICATION OF DRIVERS -- A driver can be disqualified if he is convicted of driving a commercial vehicle while under the influence of alcohol (BAC of 0.04 or refusing a test); driving under the influence of narcotics; leaving the scene of an accident; or committing a felony involving a motor vehicle.

Section 392.6 SCHEDULES TO CONFORM WITH SPEED LIMITS -- Motor carriers are not allowed to schedule trips that require a driver to speed.

Section 392.7 EQUIPMENT INSPECTION AND USE -- Drivers are required to check brakes, steering mechanism, lights, tires, horns, windshield wipers, rear view mirrors and coupling devices to make sure they are in good working order and shall not drive the vehicle if they are not (e.g. pre-trip and post-trip inspections).

Section 393.42 BRAKES REQUIRED ON ALL WHEELS -- With a few narrow exceptions, every commercial vehicle must be equipped with brakes on all wheels.

Section 395.3 MAXIMUM DRIVING AND ON-DUTY TIME -- This section restricts the amount of time a driver is allowed to drive and sets out specific requirements for rest.

Section 395.8 DRIVERS' RECORD OF DUTY STATUS -- Drivers are required to keep logs of their duty status for each 24-hour period. The failure to keep complete and accurate records will subject the driver and the carrier to prosecution. However, the company and driver are not required to keep logs more than six months. Furthermore, many drivers maintain two logs (one for state troopers and the other for their employer).

Section 396.3 INSPECTION, REPAIR AND MAINTENANCE - Motor carriers are required to have a system to inspect, repair and maintain all its trucks.

Sections 382.303 and 391.113 POST-ACCIDENT TESTING - If an accident results in a human fatality, drug and alcohol testing must be done of the surviving driver by his or her employer. Furthermore, if an accident involves bodily injury to any person who receives medical treatment away from the scene and the driver receives a citation under state or local law, alcohol and controlled substance testing is also required by the employer. Furthermore, the driver shall provide a urine sample to be tested for the use of controlled substances as soon as possible, but not later than thirty-two (32) hours after an accident in certain situations.

Section 392.22 STOPPED VEHICLE -- When a vehicle is stopped, there are certain requirements regarding the use of signals such as warning signal flashers and three emergency reflective triangles, etc.

Section 392.14 USE EXTREME CAUTION -- A driver must use extreme caution during hazardous driving conditions affecting visibility or traction which include conditions such as: snow, ice, sleet, fog, mist, rain, dust and smoke. (What about sun?).

Section 395.8(K) RETENTION OF DRIVER'S RECORD OF DUTY STATUS -- Driver's logs shall be forwarded to the carrier's principal place of business where they shall be retained with all supporting documents for a period of six (6) months from the date of receipt. The driver is required to retain a copy of each record of duty status (i.e. logs) for the previous seven (7) consecutive days which shall be in his or her possession and available for inspection while on duty.

Gathering Pertinent Information

The discovery part of litigation in a case involving a big-rig is critical. Because the Federal Motor Carrier Safety Regulations require companies and their drivers to maintain records, it is important to obtain those records as soon as possible to get background information on the company, the driver and the truck. Keeping this in mind, it is important to note that there are time limits regarding retention of records that can hurt those who are unfamiliar with these type cases. For instance, the trucking company is only required to maintain certain records for up to six (6) months. Because these records are valuable to a plaintiff's attorney, the lawsuit and/or written notice should be sent to the company within six (6) months from the date of the accident regarding the need to retain and produce said documentation.

Discovery is typically started in these cases by filing a set of interrogatories and/or request for admissions and/or request for production of documents with the complaint. By use of these methods, the plaintiff should seek to obtain at least the following information:

Driver's Application for Employment - § 391.21
Personnel file on driver
Investigation and inquiry of driver's qualifications - § 391.23
Annual review of driving record - § 391.25
Record of traffic violations - § 391.27
Copy of road test - § 391.31
Copy of written examination
Medical examiner's certificate - § 391.43
Copy of all notifications of accidents - § 390.15(b)
Logs for the past year
Inspection, repair, service and maintenance records - § 396.17
Driver manuals
Payment schedule of company and driver
Gas receipts, charge card receipts, hotel receipts, restaurant receipts of driver for past twelve (12) months
Employment records of all drivers with motor carrier
Bill of sale and other records relating to ownership of truck from the date of sale to present
Employment records of all previous drivers
Safety literature from company's insurance carrier
Inspection reports by insurance carrier
1-800-COMPLAINTS
All bills of lading for any shipper's goods which were transported by the driver on the day of the accident
Accident report information - § 390.15
All inspection (pre-inspection and post-inspection) reports or records pertaining to vehicle in question - § 396.11
All 30-day inspection reports for the vehicle in question
All rules and regulations regarding loading procedures
All safety literature, safety programs, safety manuals or other written documents pertaining to safety provided to employees by company.^[7]

After receiving all responses to written discovery requests, the plaintiff's attorney and his expert (if necessary) should thoroughly review all documentation to prepare for oral depositions. Depending on the facts and circumstances, the number of depositions may vary from four (4) or five (5) to twenty (20) or thirty (30); however, typically, you will begin by taking the deposition of the driver, dispatcher, mechanics who have worked on the vehicle at issue and the Safety Director of the company at issue.

During the deposition, the attorney can further pursue information already obtained or not obtained by written discovery plus the attorney can determine the facts from the defendant's point of view. I am almost always amazed at the position taken by the trucking company and their driver because it is almost always ridiculous. For instance, recently a truck driver told me in deposition that my client should have seen him coming through the red light at a high rate of speed due to the fact that his truck was so big. When asked who he blamed for causing the accident, he stated that my little lady should have gotten out of his way. In another case, the Safety Director of one of the largest trucking companies in the country told me that, based upon the facts, their driver performed as any reasonable and prudent person would have under the circumstances. In this case, the driver drove on to Interstate 85 with no lights after dark. The engine of the truck was making funny noises and losing power. His on-board computer and CB were out of service. When the truck finally came to a complete stop, he left it in the middle of the interstate without setting out the required reflective triangles or flares. The driver further testified that he passed four (4) exits with the vehicle in the condition herein described without leaving the interstate. In another case, which has yet to go to trial, the defendant driver informed our lawyers that he informed the company before he left in the truck that the brakes were not properly working to which they replied, AWe will fix them when you get back.@ Before he got back, he ran a red light, turned over the dump truck, and buried our client alive under a ton of sand. In a case involving a logging truck, the owner of the company testified that although he was somewhat familiar with the requirements of the Federal Motor Carrier Safety Regulations, he simply did not have time to follow them and certainly did not have enough storage room to keep the required documents. Therefore, he had no documents in compliance with federal or state regulations. The above examples are simply a few examples of utterly ridiculous stories testified to by company representatives and drivers in cases we have recently handled.

On a positive note, it has been reported that there is a new rule to require reflective tape on trailers built before 1993 in the United States. Previously, only trailers built from 1993 and later were required to apply reflective tape. I am hopeful that this new rule will be applied immediately throughout the trucking industry.^[8]

As you ride down the interstate, you will find it interesting to note just how few trucks have applied the reflective red and silver tape on their sides or rear. It is simply unconscionable for a truck to be on our highway system without the added warning of reflective tape.

Summary

As stated at the beginning of this paper, this is simply a brief overview of a plaintiff's perspective to motor vehicle accidents involving 18-wheelers. This paper is not intended to be exhaustive, nor is it intended to be the only way to go about handling these type cases. However, if you or a friend of yours is involved in a serious motor vehicle accident with one of these big- rigs, I would recommend that you contact an attorney who is familiar with the rules and regulations set forth by our federal and state governments regarding these type rigs. These cases are simply too complex for someone who is not familiar with the ways of the trucking industry.

Be careful out there!!!

Prepared by:

Will O. (Trip) Walton, III
2515 East Glenn Avenue
Suite 304
Auburn, Alabama 36830
waltonlaw@waltonlaw.net
www.waltonlaw.net
334-321-3000

^[1] Marianne Lavelle, The Killer Trucks, U. S. News & World Report, September 13, 1999, at 12.
^[2] Id.
^[3] Kenneth J. Mendelsohn, Preparing The 18-Wheel Truck Case From The Plaintiff's Perspective, Alabama Trial Lawyers Journal, Winter 1994, at 3.
^[4] Jere L. Beasley Report, April 1, 1999.
^[5] Mendelsohn, supra. at 3.
^[6] Id.
^[7] Id. at 5.
^[8] Beasley Report, supra.